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Bird v. Leningren

United States District Court, D. South Dakota, Western Division

March 9, 2016

CHARLES BLUE BIRD, Plaintiff,
v.
JUDGE HIEDI LENINGREN, JUDGE THOMAS TRIMIBLE, JUDGE ROBERT A. MANDEL, JUDGE JEFF W. DAVIS, D.C.I. TRACEY DOLLISON DECKER, D.C.I. ROBERT BURMAN, R.C.P.D. DAVID COLLINS, KELLY VENEKLASEN, D.C.I. KIETH CARLSON, CHIEF KEVIN THOM, GOVERNOR DENNIS DAUGAARD, CLERK OF COURTS RANAE TRUMAN, CLERK OF COURTS HEATHER SUZANNA, JESSE CULBERTSON, Y KENDRICK, P.C.J. CAPT. HAGA, P.C.J. C.O. STEEL, and S.G.T. STEEL, Defendants.

ORDER GRANTING IN FORMA PAUPERIS

JEFFREY L. VIKEN CHIEF JUDGE

Plaintiff Charles Blue Bird, an inmate at the Pennington County Jail in Rapid City, South Dakota, filed a multiple count complaint against the defendants. (Docket 1). Mr. Blue Bird moves for leave to proceed in forma pauperis and submitted a current copy of his prisoner trust account report. (Dockets 2 & 3).

Section 1915 of Title 28 of the United States Code, as amended by the Prison Litigation Reform Act (“PLRA”), governs proceedings filed in forma pauperis. When a prisoner files a civil action in forma pauperis, the PLRA requires a prisoner to pay an initial partial filing fee when possible. See 28 U.S.C. § 1915(b)(1). The initial partial filing fee is calculated according to § 1915(b)(1), which requires a payment of 20 percent of the greater of:

(A) the average monthly deposits to the prisoner’s account; or
(B) the average monthly balance in the prisoner’s account for the 6-month period immediately preceding the filing of the complaint or notice of appeal.

Id.

In support of his motion, Mr. Blue Bird provided a copy of his prisoner trust account report signed by an authorized prison official. (Docket 4). The report shows an average monthly deposit for the past six months of $20.00, an average monthly balance for the past six months of $0.00, and a current balance of $0.00. Id. In light of this information, the court finds Mr. Blue Bird is indigent, qualifies for in forma pauperis status and is not required to make an initial partial filing fee payment. These findings do not discharge the $350 filing fee but rather allow a prisoner the opportunity to pay the filing fee in installments. See 28 U.S.C. § 1915(b)(1) (“[I]f a prisoner brings a civil action or files an appeal in forma pauperis, the prisoner shall be required to pay the full amount of the filing fee.”).

Under 28 U.S.C. § 1915A, the court must review a prisoner complaint and identify cognizable claims or dismiss the complaint if it is frivolous, malicious or fails to state a claim upon which relief may be granted. This screening process “applies to all civil complaints filed by [a] prisoner[], regardless of payment of [the] filing fee.” Lewis v. Estes, 242 F.3d 375 at *1 (8th Cir. 2000) (unpublished) (citing Carr v. Dvorin, 171 F.3d 115, 116 (2d Cir. 1999). During this initial screening process, the court must dismiss the complaint in its entirety or in part if the complaint is “frivolous, malicious, or fails to state a claim upon which relief may be granted” or “seeks monetary relief [from] a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b).

“[A] complaint, containing as it does both factual allegations and legal conclusions, is frivolous where it lacks an arguable basis either in law or in fact. . . . § 1915(d)’s term ‘frivolous, ’ when applied to a complaint, embraces not only the inarguable legal conclusion, but also the fanciful factual allegation.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). The court may dismiss a complaint under § 1915(e)(2)(B)(i) and § 1915A(b)(1) as frivolous because “the statute accords judges not only the authority to dismiss a claim based on an indisputably meritless legal theory, but also the unusual power to pierce the veil of the complaint’s factual allegations and dismiss those claims whose factual contentions are clearly baseless.” Id. at 327.

Because Mr. Blue Bird is proceeding pro se, his pleading must be liberally construed and his complaint, “however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks and citation omitted).

Mr. Blue Bird used a Civil Rights Complaint By A Prisoner form. (Docket 1). Under Section A. Jurisdiction, Mr. Blue Bird did not check the box asserting jurisdiction under 1(a) 28 U.S.C. § 1343(a)(3), or 42 U.S.C. § 1983; or 1(b) 28 U.S.C. § 1331, or Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971); or 1(c) Other. Id. at p. 1(a), (b) & (c). After “Other: (Please specify.)” Mr. Blue Bird wrote “Blue Bird vs Hiedi Leningren.” Id. The court’s analysis presumes Mr. Blue Bird intended to bring this action under § 1983.

Mr. Blue Bird’s complaint contains three separate counts. Count 1 alleges his “Constitutional Rights Violated [and] Civil Rights as a Human Being were violated.” (Docket 1 at p. 4). On the complaint form for the designation of the issues presented, Mr. Blue Bird checked “Retaliation” and “Other, ” after which he wrote “Harassment Racism Cruel & Unusual Punishment.” Id. Mr. Blue Bird claims that jail employees accepted bribes. Id. He claims he was harassed by jail employees, including those paid by “agents” to coerce him into a plea deal. Id. Mr. Blue Bird alleges he was harassed and pushed by SGT Steel and choked by C.O. Steel. Id. Mr. Blue Bird claims injuries of “mental, stress, emotion[al] distress, can’t sleep at night[.]” Id.

Count 2 alleges “Constitutional Rights were violated [and] Civil Rights as a Human Being [were] violated.” (Docket 1 at p. 5). On the complaint form for the designation of the issues presented, Mr. Blue Bird checked “Other” and wrote “Discrimination.” Id. He alleges he was forced to give a urine sample in violation of his Fourth Amendment rights. Id. He complains that South Dakota Governor Dennis Daugaard and Kevin Thom had him extradited from Oregon. Id. He alleges Jesse Culbertson made a false report and had him arrested. Id. He complains about Congress stealing the Black Hills from the Lakota as well as racism and oppression in general. Id. Mr. Blue Bird claims injuries of “traumatize, mental, stress, suffer & pain[, ] can’t sleep at night [and] emotional distress.” Id.

Count 3 alleges “Constitutional Rights Violated [and] Civil Rights as a Human Being” were violated. (Docket 1 at p. 6). On the complaint form for designation of the issues presented, Mr. Blue Bird checked “Other” and wrote “Discrimination accepting briberys [sic] officers.” Id. He alleges that defendant judges accepted bribes, committed racial profiling and human trafficking, violated his Fourth Amendment rights, and violated due process by forcing him to provide a urine sample and extraditing him from Oregon. Id. Mr. Blue Bird alleges that the jail staff threatened his life in order to force him to provide a ...


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